There are two states of the human condition that cause the most
angst: first, having something one does not want, and second,
wanting something one can't have. As bad as these two conditions
are standing alone, when experienced together, they can pose a
seemingly insurmountable challenge.
The arena of litigation is filled with cases that represent the
merger of these undesirable conditions. While not every matter
involves what the public commonly refers to as "personal injury,"
it is safe to say that every injury - whether physical, economic or
intellectual - is personal. No one engages in litigation because
every aspect of their life is in harmony; if you are sitting on the
other side of the table from a lawyer, something has gone
Regardless of the nature of the underlying problem, most legal
disputes and most litigants have something in common. With the
exception of a very small population of outliers who thrive on
controversy, most people do not want disruption in their lives.
They do not want to be injured, or unemployed, or on the losing
side of a business venture, or in conflict with their neighbor.
They find themselves in the unfamiliar, and uncomfortable, world of
litigation because they have something (whether it is a medical
condition or economic circumstance or domestic dispute) that they
do not want.
At the same time, the average litigant wants something they
cannot have. They want a quick resolution, or a guarantee that
their life will go on as before, or a sum of money that they have
determined will justify the angst they have endured. In the world
of civil litigation, it is rarely the case that any resolution is
quick or satisfying. Our process moves slowly and rarely results in
what anyone would characterize as justice. Rather, litigants who
are unhappy to begin with, regardless of whether their role is that
of plaintiff or defendant, follow their lawyer-guides through an
im-perfect system that, more often than not, ends with some level
of disappointment for all.
Alternative dispute resolution (or ADR), while not perfect,
lends dignity to an otherwise undignified experience. Some
litigants liken the experience of answering interrogatories,
producing documents, and submitting to forensic or physical
examinations to a strip search. An arbitrator or mediator who, by
definition, has not been involved in and has no stake in the
outcome of the matter at hand, is removed from tensions that may
have developed between litigants and their counsel in the course of
discovery. While depositions, independent medical examinations and
other pre-trial events take place on partisan turf, the office of
the ADR neutral is, and should be, a symbolic sanctuary. Parties
can air their gripes in a fair space and, in a world in which they
may feel that they have lost a certain amount of control, they can
regain their footing. ADR is unique in that, unlike other legal
events that are governed by the Rules of Evidence or the Rules of
Civil Procedure, ADR methods can be crafted to meet very specific
design needs of the participants.
For instance, in some cases, one party does not want to be in
the presence of another, or one party does not want to be present
for the testimony of another, or a parent prefers a child to hear
some, but not all, of a presentation. In mediation, the structure
of the event is limited only by the imaginations of the parties.
Conversely, the format of arbitration is more formal but, in most
instances, the parties can consent to a certain degree of
flexibility. In either case, the key is open communication between
the party representatives and the neutral. If parties want or need
a particular accommodation, they should communicate that to their
representative, who in turn can convey the same to the neutral. Too
often, a party who is already dismayed by one aspect or another of
their predicament will assume that their request as to ADR format
cannot be accommodated and they will choose the self-limiting path
of never raising the issue. One of ADR's greatest gifts is its
spectrum of options; parties and their counsel should never
hesitate to inquire about the same.
Similarly, non-monetary options abound - often exclusively - in
the world of ADR solutions. Thanks to an unhealthy combination of
cynicism and media portrayal, parties sometimes assume that their
own attorneys are interested mostly in what they themselves will
get out of a case. To the contrary and, again, setting aside the
outliers, most counsel of repute want a happy client first.
Regardless of side in a legal dispute, an apology goes a long way
towards resolution, as does common courtesy and compassion.
Depending on the particular circumstances, to some who have
suffered a worksite tragedy or injury at the hands of a product or
process, a negotiated agreement that incorporates a product review
or policy change goes a long way to resolving a dispute; at the
same time, such a step generally benefits the alleged tort feasor
as well. Catharsis is good. Returning again to a reflection on
human nature, the notion that one has saved others from a bad
experience can have value, and that value should not be
underestimated in the course of a negotiated settlement.
Finally, litigants come to ADR looking for a conclusion. Very
few attorneys have only one case and very few litigants have more
that one legal matter in which they are engaged at any particular
time. While attorneys engage in ADR in the midst of other scheduled
matters, their clients fret for what must seem like a long time
over the promise of this one event. Setting aside the instances of
fishing expeditions or unmanageable expectations, the majority of
parties look to ADR as the light at the end of the tunnel, and it
can be, if they and their counsel approach it with clear heads,
reasonable expectations, and a view that is sincerely open to
alternatives. A solution may not be perfect, but resolution in and
of itself can be perfection.
Sarah E. Worley is president of Sarah E.
Worley Conflict Resolution PC, a full-service private provider of
alternative dispute resolution services. The firm offers mediation,
arbitration, conciliation, case evaluation, mini-trial, mock trial
and summary process trial, and has the capacity to run mock trials
and focus groups on-site. Worley can be reached at (617) 419-1900
or via e-mail at [e-mail sarah].